Wednesday, 8 August 2012

AMHP’s in Court: Some Recent Case Law

Case Law relating specifically to the
discharge of AMHP’s powers under the MHA is fairly rare. I don’t know whether
this is because AMHP’s rarely make mistakes, or whether it is because most
people who are detained under the MHA don’t know enough about the legal process
to know whether or not an error in law has been made.

Whatever the reason, court cases of
relevance to AMHP practice seem to be like buses – you don’t get any for ages,
then two come along at once. In fact, the two particular cases I’m writing
about were heard within a month of each other – in March and April 2012.

The first is DD v.Durham County Council
& Middlesbrough City Council ([2012] EWHC 1053 (QB)). Although the events
with which the Claimant took issue occurred at the end of 2009 and the
beginning of 2010, the Claimant did not actually issue proceedings until nearly
the end of 2011.

DD had been serving a prison sentence. When
the sentence ended, but during a period in which DD continued to reside in the
prison, he was assessed under the MHA by two AMHP’s, and the decision was made
to detain him under Sec.2 for assessment. He was admitted to a medium secure
psychiatric unit. Before this expired, he was assessed by two more AMHP’s, who
decided that he should be detained for treatment under Sec.3. Because the
location of the assessment was not in the Durham
area, and because of the adverse weather conditions pertaining at the time, a
Middlesbrough AMHP subsequently assessed and applied for his detention under
Sec.3.

DD wanted to instigate proceedings under
Sec.139 MHA. This relates to liability for acts “done in bad faith or without
reasonable care”. In effect, he wanted to sue one or more of the AMHP’s who had
been involved for detaining him illegally.

DD argued that both the AMHP’s who had
completed the Sec.2 application and the subsequent Sec.3 had breached their
duties under Sec.13(2) MHA.

Sec.13(2) states:

“Before making an application for the
admission of a patient to hospital an approved mental health professional shall
interview the patient in a suitable manner and satisfy himself that detention
in a hospital is in all the circumstances of the case the most appropriate way
of providing the care and medical treatment of which the patient stands in
need.”

He argued that the AMHP in question had “a duty to investigate the proposed place of detention,
the location where the patient will be kept while there and the regime to which
he will be subject. This is said to arise because of the need to make a recommendation
in the light of ‘all the circumstances’”. This was because he was objecting to
the secure unit he was sent to, instead preferring to go to Rampton.

The Judge in the case dismissed this
argument in one paragraph:

“It is obvious than an AMHP is not directly
responsible for the medical or other regimes to which a detained person is
subjected… An AMHP has certain responsibilities under the Mental Health Act
which include recommending a person for detention under s.2 or under s.3. Their
responsibilities have to be discharged in the light of all the relevant
circumstances of the case, which would include taking into account the
assessments of qualified doctors. Their functions do not extend, however, to
choosing an institution in which the person concerned is to be detained – still
less to researching the available facilities or carrying out a reconnaissance
to assess their quality.”

This is reassuring confirmation of what I
am sure is a universal view held by AMHP’s, which is that they only need to
decide whether or not a patient needs to be detained, and not the suitability
or otherwise of the hospital they will be admitted to.

DD described himself as having “a paranoid,
narcissistic and antisocial personality disorder”. This observation would be
entirely consistent with the nature of his complaint.

While in this case, the AMHP’s involved
were all exonerated, this was not the outcome in GP v. Derby City Council
([2012] EWHC 1451 (Admin)).

At the time of the court hearing, GP had
been detained under Sec.3 in a low secure unit since July 2011. He was
challenging the legality of this detention on the grounds that the AMHP had
failed to consult with the patient’s Nearest Relative as required under
Sec.11(4)(a).

The AMHP who made the application maintained that he had attempted
to contact the NR on her mobile phone, but had not been able to speak to them.
He therefore stated that it was not reasonably practicable, or would involve
unreasonable delay to do so, and completed the application. In the space
provided on Form A6, he had written: "I have tried to contact several times but the mobile went to
answer machine. As GP Section 2 is due to lapse later today and given his
current state I felt it would involve unreasonable delay to consult with Ms
P."

This assessment was concluded at around
1600 hrs on the day that the existing Sec.2 detention was due to expire at
midnight. The AMHP had been under pressure of time, and was also being
pressured by the ward staff to complete the application on the basis that the
patient needed to be transferred to a Psychiatric Intensive Care Unit (PICU).

The Judge noted that the AMHP had been
ringing the wrong number, but that the correct number was available on medical
records. He also noted that the AMHP himself had stated in evidence that it was
his usual practice to visit the NR at their home in order to consult with them
under Sec.3. The Judge concluded that there had been enough time to visit the
NR, and that the AMHP should have done this. He therefore concluded that the
AMHP had indeed failed in his duty to consult with the NR, and as a
consequence, this rendered the Sec.3 unlawful.

The Judge said:

“On the evidence that is available, the
question has to be asked as to whether it was plainly wrong to proceed with an
immediate certification in the circumstances as they were. I conclude that it
was because, as I have attempted to explain, section 11 provides constitutional
protection for those that are faced with detention under the Mental Health Act.
Compliance with the requirements of section 11(4) is therefore the price which
is paid for the ability of those charged with the treatment
of those with mental illnesses and disabilities to detain people without
immediate recourse to a court and in a way which is compliant with Article 5.
Thus there is a heavy duty on those who carry out these tasks to ensure that
those statutory provisions are complied with.”

This case has considerable implications for
AMHP practice. The Judge makes it clear that, in order not to breach Article 5
of the Human Rights Act (The right to liberty and security), an AMHP must go to
considerable and quite possibly arduous lengths to fulfill their legal
obligations. It is not enough to ring the NR a couple of times and then fill in
the form saying that it is impracticable to consult with them. The AMHP must
show far more evidence of their efforts.

The consequence of this particular lapse
was that the patient was deemed to have been unlawfully detained for up to 9
months.

8 comments:

What happens to the AMHP in the second situation you have outlined above? Might the AMHP end up in court themselves? Or is that too extreme? Would the AMHP be subject to an investigation by their professional body? Can special measures be recommended by that body e.g. mandatory training; mentoring etc?

The judge in the case specifically did not suggest that the AMHP was acting in bad faith. There can be few AMHP's who have never made a few attempts at contacting the NR, then looked at the time and decided it was not practicable to consult. It would be unlikely that the AMHP in question would be subject to disciplinary action, either by his employers or his professional body. The lesson to be learned by this is that the courts are likely to take very seriously any evidence that the AMHP did not make considerable efforts to contact the NR.When I receive a request, particularly for Sec.3, the first thing I try to do is to make contact with the NR, long before I have actually interviewed the patient. After all, if the NR objects, an application for Sec.3 cannot take place, unless there is evidence that they are unreasonable, in which case, your're going to have to start looking at displacement.But this case has made me think hard about the extent to which I should try to consult.

Whatever happened to not donning the mantle of an investigator (can't remember the caselaw), worrying development, but I suppose in the light of the usual practice of that particular AMHP of making a home visit to NR, and the fact of the wrong number, still....

This calls into question the balance of the human rights of the patient. Contacting the NR prior to interviewing the patient does not allow you to gain an understanding of the extent to which they will be distressed, whether as a capacitous decision or as a result of altered perceptions, by the consultation. All very well when you know the patient well, but potentially a breach of human rights? Where do you think the balance lies? I would wish to interview the patient first but often in case law it seems that the NR holds sway, maybe an interesting issue around relative (pun intended) power and willingness to litigate? We are there to protect the rights of the patient still surely?

As a rule, the AMHP has a legal duty to consult with the NR. The AMHP also has a duty to research the background of the patient as part of the assessment. There are circumstances in which it is established that consultation with the NR is against the interests of the patient, for example, if it is known that the patient has experienced abuse from the legal NR. However, it is not enough for the patient to just say that they do not want the NR to be consulted, as the patient may have unfounded paranoid beliefs about the NR.One notorious case involved an ASW (it was before the 2007 Act)who assessed someone in police custody and did not discuss the assessment or obtain information concerning the patient's wife, who feared for her life. Her evidence was not then taken into account in reaching a decision, the patient was not detained, and he subsequently killed his wife.

If the unfounded paranoid belief whould cause the patient acute emotional distress if the NR was consulted, in my opinion it would not be practicable to consult. It is the effect that consultation would have on the patient mental health that matters, not its cause.

4.60 of the Code of Practice states:"There may also be cases where, although physically possible, it would not be reasonably practicable to inform or consult the nearest relative because there would be a detrimental impact on the patient which would result in infringement of the patient’s right to respect for their privacy and family life under article 8 of the European Convention on Human Rights and which could not be justified by the benefit of the involvement of the nearest relative.4 Detrimental impact may include cases where patients are likely to suffer emotional distress, deterioration in their mental health, physical harm, or financial or other exploitation as a result of the consultation."

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About Me

I am an Approved Mental Health Professional working in a semi-rural area in England. I have practised under 3 Mental Health Acts, since as long ago as 1981, even before the 1983 Mental Health Act. Which makes me pretty ancient now.
This blog is designed to illuminate and explain the functions and dlimemmas of an AMHP within the Mental Health Act. It is intended to be of help to professionals and service users alike. I hope that it is both informative and entertaining.
I am also a freelance trainer, and a part time tutor on an AMHP course. I've appeared at conferences all over England and Wales. If you'd like to book me for your conference or training event just send me an email.